Sunday, March 7, 2010

Justice Alito's Goat--What Gets It? (Part 4: One Last Thing)

[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]

Were the other conservatives on the Court with Alito? When Justice Samuel Alito wrote a dissent, was he joined by the other conservative Justices on the Court? In those cases where he dissented, was it simply a matter of the liberal Justices versus the conservatives? Did Alito's dissenting opinion simply represent the views of the Court's conservative bloc?

Stated otherwise, when a decision of the Supreme Court--i.e., of a majority of the Justices--was so wrong in Alito's view that he authored a dissenting opinion to air his disagreement publicly, did the other conservative Justices share his view? Did the other conservatives share his view at least enough to join his dissenting opinion, if not to write one of their own? In short, did the decisions that got Alito's goat also get the goats of the other conservatives?

Let's see. Let's revisit those 10 cases from the last 2 posts. (The last 2 posts in this series on New York Court Watcher looked at the 10 most recent Supreme Court decisions against which Justice Alito authored a dissenting opinion. See Justice Alito's Goat--What Gets It? (Part 3: Connecting the Dots), Feb. 28, 2010; (Part 2: His Dissents), Feb. 22, 2010.)

There were 2 death penalty cases. In one, Wellons v. Hall [where the Court ordered a hearing to determine whether the judge-jury misconduct at trial tainted the conviction], Alito dissented. But Chief Justice John Roberts and Justice Clarence Thomas joined the majority opinion. Justice Anthony Kennedy joined the majority as well. (For the purposes here, however, we won't even treat this moderate-conservative as one of the conservatives, but rather as a separate moderate.)

In the other death penalty case, Cone v. Bell [where the Court ordered a trial-court hearing to determine whether the prosecutor's misconduct (hiding evidence) tainted the sentence], Alito dissented. But Roberts agreed with the decision reached by the majority--as did Kennedy.

There were 3 automobile search cases. In the first, AZ v. Gant [where the Court ruled that the police need some justification--i.e., some reason to believe there is evidence or danger--before they can search an automobile during a traffic stop], Alito dissented. But Justices Antonin Scalia and Thomas joined the majority opinion.

In the next 2 automobile search cases, Grooms v. U.S. and Megginson v. U.S. [where the Supreme Court ordered lower courts to determine whether there was any legal justification for the warrantless searches conducted after the driver (in Grooms) and the passenger (in Megginson) were arrested], Alito dissented alone. Roberts, Scalia, and Thomas all joined the majority--as did Kennedy.

In the double jeopardy case, Yeager v. U.S., [where the Court ruled that certain "hung jury" charges could not be reprosecuted], Alito dissenetd. But Roberts joined the majority opinion--as did Kennedy.

In the immigration case, Nken v. Holder [where the Court ordered a halt to a foreign citizen's deportation until his claim for asylum, based on political persecution and torture, could be judicially reviewed], Alito dissented. But Roberts authored the majority opinion which Scalia joined--as did Kennedy.

In the injured worker case, Atlantic Sounding v. Townsend [where the Court upheld punitive damages against an employer that deliberately violated its legal obligations to the worker], Alito dissented. But Thomas authored the majority opinion.

In the drug warnings case, Wyeth v. Levine [where the Court ruled that a drug company's federally approved label did not excuse it from violating a state's safety laws by failing to warn about known dangers], Alito dissented. But Thomas agreed with the decision reached by the majority--as did Kennedy.

Only in the confession case, Corley v. U.S. [where the Court barred the government from using a confession obtained in an unconstitutionally prolonged detention], did all the other conservatives join Alito's dissent.

So, in 9 out of the last 10 cases in which Alito wrote a dissent, at least 1 of the other conservative Justices disagreed with him and agreed with the Court's decision. Only once, did Alito's dissent represent the view of the Court's conservative bloc.

More than that, in 4 of the cases, at least 2 of the other conservatives disagreed with Alito and agreed with the Court's decision. In 7 of the cases, Justices Scalia or Thomas or both disagreed with Alito and agreed with the Court's decision. Yes, Scalia and Thomas!

Returning to the questions raised at the outset: No, Alito's dissents did not, except in 1 of the 10 cases, represent 1 side of a clear liberal-Justices versus conservative-Justices split on the Court. No, his dissents did not reflect the views of all the conservatives. No, the other conservatives did not always disagree with the Court's decisions against which Alito dissented. No, his pro-death sentence, pro-law enforcement, pro-prosecution, pro-business views which he expressed in his dissenting opinions typically failed (9 out 10 cases) to win over the Court's conservative bloc.

One more dissent! Since the last post, Justice Alito authored another dissenting opinion. In Johnson v. U.S. (decided Mar. 2, 2010), the Court overruled an enhanced criminal sentence that was imposed on the basis of defendant's prior "violent" felony. The Court held that, under the applicable law, a prior felony can qualify as a sentence-enhancing "violent" one only if it involves actual force that causes physical pain or injury.
Alito dissented. He argued that actual physically violent force is not required. As for the other conservatives, Scalia authored the majority opinion, and Roberts joined him--as did Kennedy.

Part of the pattern. Same sort of Court decision that gets Alito's goat. Same sort of Court decision that gets the support of some other conservative Justices. Same sort of Alito dissent that fails to garner the votes of some fellow conservatives. Same sort of disagreement with a Court decision that suggests that Justice Alito is oftentimes too ideologically conservative even for his fellow ideological conservatives.